State of Madhya Pradesh vs Phool Singh and Ghasi Ram

B.D. Rathi, J.—This appeal u/s 378 of the Code of Criminal Procedure, 1973 (in short the Code) has been filed by the appellant/State against the judgment of acquittal dated 22-07-1998 passed by learned Additional Sessions Judge, Mungaoli District Guna in Sessions Trial No. 171/1996 whereby respondents were acquitted of the offence punishable u/s 302 /34 of Indian Penal Code (in short IPC). During pendency of this appeal respondent No. 2 -Ghasiram had died and hence, the appeal stands abated against him. The prosecution case, in brief is that one Girvar S/o Motilal Lodhi resident of village Pathari went to Mungaoli District Guna on 22-03-1996. While returning from Mungaoli, Girvar was tried to strangulate by the unknown companion (respondent No. 2) and assaulted by knife by Phool Singh respondent No. 1. On hearing his yelp, Girvar''s son Deshraj (PW-1), came on the spot and respondents fled. FIR Ex-P/24 was lodged by Girvar and crime No. 66/1996 was registered at police station Mungaoli district Guna for the offence punishable under Sections 341, 307 and 34 of IPC and after completion of investigation, charge-sheet was filed u/s 302 of IPC also. It is pertinent to mention here that victim Girvar had died on 23-03-1996 during his treatment.

During the trial, the accused persons pleaded not guilty to the charge and contended that they had been falsely implicated.

Learned Panel Lawyer for the appellant/State submitted that learned trial Court has not appreciated the entire evidence and material available on record properly. The case has been proved beyond reasonable doubt by producing cogent and reliable evidence. It was also prayed that the appeal be allowed and respondent No. 1 be convicted for committing murder of Girvar and sentenced him accordingly.

On the contrary, learned counsel for respondent No. 1 submitted that the judgment of acquittal is well merited. Prosecution has failed to prove its case beyond reasonable doubt. No interference is called for in the impugned judgment. Prayer was made for the dismissal of appeal.

To bring home the charge, prosecution has produced as many as 25 witnesses, namely, Deshraj (PW-1), Jitendra (PW-2), Shyamlal (PW-3), Veer Singh (PW-4), Ramratan (PW-5), Murari (PW-6), Narayan Singh (PW-7), Phoolan Singh (PW-8), Premnarayan (PW-9), Ghanshyam (PW-10), Munnalal (PW-11), Marjat Singh (PW-12), Shanti Bai (PW-13), Som Singh (PW-14), Dhanua (PW-15), Heeralal Raghuvanshi (PW-16), Rayish Mohammad (PW-17), Naib Tahsildar P.C. Shakya (PW-18), Naib Tahsildar R.N. Saxena (PW-19), Guddu (PW-20), Mukesh Kumar Razak (PW-21), Dr. D.K. Bhargava (PW-22), Retired Police Inspector Brijmohan Garg (PW-23), Town Inspector R.N. Sharma (PW-24), Dr. S.R.S. Raghuvanshi (PW-25) and respondents have examined Ramswaroop (DW-1) and Hariom Ojha (DW-2) in their defence.

Having regard to the arguments advanced by the parties, we have perused the entire evidence and material available on record as well as the impugned judgment of trial Court.

From perusal of the record, it is clear that four sets of evidence were produced by the prosecution to prove its case:

i. Firstly on the basis of evidence of eye-witness Deshraj (PW-1) who is son of deceased.

ii. Secondly, the weapon-knife which was used for committing the murder had been seized from the possession of respondent -Phool Singh.

iii. Thirdly, on the basis of three dying declarations:

a. Dying Declaration Ex-P/19 which was recorded by Executive Magistrate Naib Tahsildar, R.N. Saxena (PW-19).

b- FIR Ex-P/24 dated 22-06-1996 lodged between 6 to 7 pm by the deceased at Police Station Mungaoli District Guna.

c- Ex-P/26 statement of deceased recorded u/s 161 of the Code.

Both these documents (Ex-P/24 and Ex-P/26) were recorded by SHO Police Station Mungaoli Brijmohan Garg (PW-23).

iv. Fourthly, oral dying declaration of the deceased.

After taking into consideration, the entire evidence and material available on record, learned trial Court has held that the prosecution has totally failed to prove its case beyond reasonable doubt.

First set of evidence was discussed in paragraph 48 of the judgment and it was held that Deshraj (PW-1) was interested witness and he also cannot be treated as chance witness because on the contrary, her mother who is widow of deceased Shanti Bai (PW-13) deposed in paragraph 3 of her evidence that her husband injured Girvar Singh (since deceased) came alone at home and Deshraj had not gone on the spot and he was at the home. In paragraph 8, again she has deposed that Deshraj was wrongly made as an eye-witness by the police.

Second set of evidence was discussed in paragraphs 51 and 52 of the judgment and it was very well held by the trial Court that the weapon-knife which was used for committing offence was not sealed on the spot and apart that no human blood stain was found present according to the FSL report Ex-P/29, therefore, this piece of circumstantial evidence does not support the case of prosecution.

The third set of evidence in regard to dying declaration recorded by Executive Magistrate Naib Tahsildar R.N. Saxena (PW-19) was discussed in paragraph 53(9). This dying declaration was totally discarded by the trial Court because the writer -Naib Tahsildar admitted in his evidence during cross-examination that the facts mentioned in the dying declaration were written by him on his own will and they were not deposed by Girvar (since dead).

In relation to other dying declaration FIR Ex-P/24 and statement recorded u/s 161 of the Code Ex-P/26, learned trial Court has held that these too were also not reliable and discarded by the trial Court by saying that the whole case of prosecution was concocted against the respondents. The matter was discussed in paragraph 53(7)&(8).

Apart that, it is also clear from the evidence of Brijmohan Garg (PW-23), who was the writer of Ex-P/24 and Ex-P/26, that he has not deposed before the Court the contents of these two documents. He simply deposed that FIR Ex-P/24 was written on the basis of information given by Girvar. Similarly, it was also deposed by him that Ex-P/26 was the statement given by Girvar. Therefore, in the light of evidence, these two documents Ex-P/24 and Ex-P/26 are also not reliable. It is settled law that mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish the evidence of the truth of the facts or contents of the documents. Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import, and 2010 (III) MPWN 9 (Sitaram v. State of M.P.)).

Now we will consider in regard to fourth set of evidence i.e. oral dying declaration. Learned trial Court has discarded the entire evidence because the evidence of the witnesses was full of contradictions, omissions and exaggerations. The evidence was well discussed in paragraph 53 (1 to 6).

It is also pertinent to mention here that it is well settled that the judgment of acquittal should not be disturbed unless the conclusion drawn on the basis of evidence brought on record are found to be grossly unreasonable or manifestly perverse or palpably unsustainable.

We have also gone through the entire evidence and found that the impugned judgment of acquittal was well merited. Evidence of prosecution was properly appreciated by the trial Court, in view of the law laid down in Govind Narain and another Vs. State of Rajasthan, and Arun Bhanudas Pawar Vs. State of Maharashtra, .

Taking into the reasons assigned on the basis of evidence on record establishing the aforesaid facts and circumstances, the view taken by the trial Court was apparently a possible view. As such, no interference is called for in the judgment of acquittal in question. The appeal, being devoid of merit and substance, stands dismissed. Respondent No. 1 is on bail and his bail bond stands discharged. Copy of the judgment be sent to the trial Court along with record.